Citation Nr: 0531851
Decision Date: 11/23/05 Archive Date: 12/02/05
DOCKET NO. 99-07 082 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Phoenix, Arizona
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
the residuals of fracture of the lateral malleolus of the
left ankle.
2. Entitlement to a total disability rating based upon
individual unemployability due to service-connected
disability (TDIU rating).
ATTORNEY FOR THE BOARD
G. Zills, Counsel
INTRODUCTION
The veteran served on active duty from April 1972 to May
1973, and on active duty for training from March to July
1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision by the RO in Phoenix,
Arizona.
In September 2000, the Board denied the veteran's claims for
an evaluation in excess of 10 percent for the residuals of
fracture of the lateral malleolus of the left ankle and for a
TDIU rating. The veteran appealed to the United States Court
of Appeals for Veterans Claims (Court). In May 2001, the
Court vacated the Board's decision and remanded the matter so
the Board could consider the impact of the Veterans Claims
Assistance Act of 2000 (VCAA), enacted after the Board issued
this decision.
In August 2002, the Board again denied the veteran's claims
for an evaluation in excess of 10 percent for the residuals
of fracture of the lateral malleolus of the left ankle and
for a TDIU rating. In motions to the Court, the parties (the
veteran and the VA Secretary) requested that the Board
decision be vacated and the case remanded for further action.
A July 2004 Court order granted the motions, and the case was
subsequently returned to the Board.
The purpose of the motions and Court order is for the Board
to further address compliance with provisions of the VCAA.
See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
motions and Court order also direct that the veteran be
provided with contemporaneous VA examinations. Thus, the
appeal is remanded to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
Pursuant to the VCAA, VA has a duty to notify the veteran (1)
of the evidence necessary to substantiate his claims; (2) of
the information and evidence that he is responsible for
providing; (3) of the evidence that VA will attempt to
obtain; and (4) request that the veteran provide any evidence
in his possession that pertains to his claims. See 38
U.S.C.A. §§ 5102, 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
By letters dated in January 2003, August 2003, and July 2004,
the RO advised the veteran that it was developing for
evidence in support of his claims for other conditions not
relevant to the claims on appeal. The veteran was advised of
the enactment of the VCAA; however, these letters notified
the veteran of the evidence necessary to establish
entitlement to other claimed conditions, and did not
specifically advise him of the information and evidence
necessary to substantiate his claims for an evaluation in
excess of 10 percent for the residuals of fracture of the
lateral malleolus of the left ankle and for a TDIU rating.
The Board has reviewed the claims folder and is unable to
identify correspondence satisfying the duty to notify as
stated above with respect to the issues currently on appeal.
Consequently, and particularly in light of the fact that
twice before the Court has vacated the Board's decision in
this case, the case must be remanded for compliance with the
VCAA.
Additionally, in view of the Court's orders and given the
circumstances of the case, including the time that has
elapsed since the last VA examination, it is the judgment of
the Board that to meet the requirements of the Court order
the Board must provide the veteran with additional VA
examinations which address his claims for an increased rating
for residuals of fracture of the lateral malleolus of the
left ankle and for a TDIU rating. 38 U.S.C.A § 5103A; 38
C.F.R. § 3.159.
The actions identified herein are consistent with the duties
imposed by the VCAA. However, identification of specific
actions requested on remand does not relieve the RO of the
responsibility to ensure full compliance with the VCAA and
its implementing regulations. Hence, in addition to the
actions requested above, the RO should also undertake any
other development and/or notification action deemed warranted
by the VCAA prior to adjudicating the claims on appeal.
Accordingly, the Board has no alternative but to defer
further appellate consideration of the claims and the case is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC for the following actions:
1. The RO should furnish the veteran
with a letter providing notification of
the VCAA and the duties to notify and
assist imposed thereby, specifically as
regards the claims currently on appeal.
The letter should include a summary of
the evidence currently of record that is
pertinent to the claims, and specific
notice as to the type of evidence
necessary to substantiate the claims. To
ensure that the duty to notify the
claimant of what evidence will be
obtained by whom is met, the letter
should include a request that he provide
sufficient information and, if necessary,
authorization to enable VA to obtain any
outstanding medical records pertinent to
the claims on appeal that are not
currently of record.
The RO should also invite the veteran to
submit all pertinent evidence in his
possession, and explain the type of
evidence that is his ultimate
responsibility to submit.
2. If the veteran responds, the RO
should assist him in obtaining any
additional evidence identified by
following the procedures set forth in 38
C.F.R. § 3.159 (2005). All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the
veteran should be notified of the records
that were not obtained, explain the
efforts taken to obtain them, and
describe further action to be taken.
3. The RO should arrange for a VA
examination which addresses the current
severity of the veteran's service-
connected residuals of fracture of the
lateral malleolus of the left ankle.
Pertinent information in the claims
folder should be reviewed by the
examiner. Any necessary related studies
found needed by the examiner should be
done. The examiner should describe all
symptomatology due to the veteran's
service-connected residuals of fracture
of the lateral malleolus of the left
ankle.
4. The RO should arrange for a VA
examination to determine the nature,
extent, and severity of the veteran's
service-connected disabilities and
nonservice-connected disabilities. The
sole purpose of the examination is to
determine whether the service-connected
disabilities, standing alone, have caused
the veteran's unemployability. The
claims folder or the pertinent medical
records contained therein, and a copy of
the Board's REMAND of this case, must be
reviewed by the examiner in conjunction
with his or her examination of the
veteran. All necessary tests should be
performed. The examiner should record
pertinent medical complaints, symptoms,
clinical findings, and comment on the
functional limitation, if any, caused by
each of the veteran's disabilities. The
issue the examiner is asked to address is
whether the veteran's service connected
disabilities have caused his
unemployment.
5. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should adjudicate the claims for an
evaluation in excess of 10 percent for
the residuals of fracture of the lateral
malleolus of the left ankle and for a
TDIU rating.
6. If any benefits sought on appeal
remain denied, the RO must furnish the
veteran with a supplemental statement of
the case (to include clear reasons and
bases for its determinations), and afford
him the appropriate time period for
response before the claims file is
returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B,
7112).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).